Who decides what's secret: Obama, or Snowden?

By Rahul Sagar, Special to CNN

Updated 9:47 AM ET, Sat June 15, 2013

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Photos:Notable leakers and whistle-blowers

Former intelligence worker Edward Snowden revealed himself as the source of documents outlining a massive effort by the NSA to track cell phone calls and monitor the e-mail and Internet traffic of virtually all Americans. He says he just wanted the public to know what the government was doing. "Even if you're not doing anything wrong, you're being watched and recorded," he said. Snowden has been granted temporary asylum in Russia after initially fleeing to Hong Kong. He has been charged with three felony counts, including violations of the U.S. Espionage Act, over the leaks.

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Photos:Notable leakers and whistle-blowers

Military analyst Daniel Ellsberg leaked the 7,000-page Pentagon Papers in 1971. The top-secret documents revealed that senior American leaders, including three presidents, knew the Vietnam War was an unwinnable, tragic quagmire. Further, they showed that the government had lied to Congress and the public about the progress of the war. Ellsberg surrendered to authorities and was charged as a spy. During his trial, the court learned that President Richard Nixon's administration had embarked on a campaign to discredit Ellsberg, illegally wiretapping him and breaking into his psychiatrist's office. All charges against him were dropped. Since then he has lived a relatively quiet life as a respected author and lecturer.

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Photos:Notable leakers and whistle-blowers

Starting in 1932, the U.S. Public Health Service studied untreated syphilis in black men who thought they were getting free health care. The patients weren't told of their affliction or sufficiently treated. Peter Buxtun, who worked for the Public Health Service, relayed information about the Tuskegee syphilis experiment to a reporter in 1972, which halted the 40-year study. His testimony at congressional hearings led to an overhaul of the Health, Education and Welfare rules concerning work with human subjects. A class-action lawsuit was settled out-of-court for $10 million, with the U.S. government promising free medical care to survivors and their families. Here, participants talk with a study coordinator.

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Photos:Notable leakers and whistle-blowers

In 2005, retired deputy FBI director Mark Felt revealed himself to be the whistle-blower "Deep Throat" in the Watergate scandal. He anonymously assisted Washington Post reporters Carl Bernstein and Bob Woodward with many of their stories about the Nixon administration's cover-up after the June 1972 break-in at the Democratic National Committee headquarters. The stories sparked a congressional investigation that eventually led to President Nixon's resignation in 1974. The Post won a Pulitzer Prize for its coverage. Felt was convicted on unrelated conspiracy charges in 1980 and eventually pardoned by President Ronald Reagan before slipping into obscurity for the next quarter-century. He died in 2008 at age 95.

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Photos:Notable leakers and whistle-blowers

Mordechai Vanunu, who worked as a technician at Israel's nuclear research facility, leaked information to a British newspaper and led nuclear arms analysts to conclude that Israel possessed a stockpile of nuclear weapons. Israel has neither confirmed nor denied its weapons program. An Israeli court convicted Vanunu in 1986 after Israeli intelligence agents captured him in Italy. He was sentenced to 18 years in prison. Since his release in 2004, he has been arrested on a number of occasions for violating terms of his parole.

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Photos:Notable leakers and whistle-blowers

President Ronald Reagan addresses the media in 1987, months after the disclosure of the Iran-Contra affair. A secret operation carried out by an American military officer used proceeds from weapons sales to Iran to fund the anti-communist Contras in Nicaragua and attempted to secure the release of U.S. hostages held by Iran-backed Hezbollah in Lebanon. Mehdi Hashemi, an officer of Iran's Islamic Revolutionary Guards Corps, leaked evidence of the deal to a Lebanese newspaper in 1986. Reagan's closest aides maintain he did not fully know, and only reluctantly came to accept, the circumstances of the operation.

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Photos:Notable leakers and whistle-blowers

Tobacco industry executive Jeffrey Wigand issued a memo to his company in 1992 about his concerns regarding tobacco additives. He was fired in March 1993 and subsequently contacted by "60 Minutes" and persuaded to tell his story on CBS. He claimed that Brown & Williamson knowingly used additives that were carcinogenic and addictive and spent millions covering it up. He also testified in a landmark case in Mississippi that resulted in a $246 billion settlement from the tobacco industry. Wigand has received public recognition for his actions and continues to crusade against Big Tobacco. He was portrayed by Russell Crowe in the 1999 film "The Insider."

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Photos:Notable leakers and whistle-blowers

For 10 years, Frederic Whitehurst complained mostly in vain about practices at the FBI's world-renowned crime lab, where he worked. His efforts eventually led to a 1997 investigation that found lab agents produced inaccurate and scientifically flawed testimony in major cases, including the Oklahoma City and World Trade Center bombings. The Justice Department recommended major reforms but also criticized Whitehurst for "overstated and incendiary" allegations. He also faced disciplinary action for refusing to cooperate with an investigation into how some of his allegations were leaked to a magazine. After a yearlong paid suspension he left the bureau in 1998 with a settlement worth more than $1.16 million.

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Photos:Notable leakers and whistle-blowers

FBI whistle-blower Coleen Rowley accused the bureau of hindering efforts to investigate a suspected terrorist that could have disrupted plans for the September 11, 2001, terror attacks. In 2002 she fired off a 13-page letter to FBI Director Robert Mueller and flew to Washington to hand-deliver copies to two members of the Senate Intelligence Committee and meet with committee staffers. The letter accused the bureau of deliberately undermining requests to look into Zacarias Moussaoui, the only person convicted in the United States of playing a role in the attacks. She testified in front of Congress and the 9/11 Commission about the FBI's mishandling of information. Rowley was selected as one of Time magazine's People of the Year in 2002, along with whistle-blowers Sherron Watkins of Enron and Cynthia Cooper of WorldCom.

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Photos:Notable leakers and whistle-blowers

Sherron Watkins, a former vice president at Enron, sent an anonymous letter to founder Kenneth Lay in 2001 warning him the company had accounting irregularities. The memo eventually reached the public and she later testified before Congress about her concerns and the company's wrongdoings. More than 4,000 Enron employees lost their jobs, and many also lost their life savings, when the energy giant declared bankruptcy in 2001. Investors lost billions of dollars. An investigation in 2002 found that Enron executives reaped millions of dollars from off-the-books partnerships and violated basic rules of accounting and ethics. Many were sentenced to prison for their roles in the Enron scandal.

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Photos:Notable leakers and whistle-blowers

Cynthia Cooper and her team of auditors uncovered massive fraud at WorldCom in 2002. They found that the long-distance telephone provider had used $3.8 billion in questionable accounting entries to inflate earnings over the past five quarters. By the end of 2003, the total fraud was estimated to be $11 billion. The company filed for bankruptcy protection and five executives ended up in prison. Cooper started her own consulting firm and told her story in the book "Extraordinary Circumstances: The Journey of a Corporate Whistleblower."

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Photos:Notable leakers and whistle-blowers

In 2003, federal air marshal Robert MacLean anonymously tipped off an MSNBC reporter that because of budget concerns, the TSA was temporarily suspending missions that would require marshals to stay in hotels just days after they were briefed about a new "potential plot" to hijack U.S. airliners. The news caused an immediate uproar on Capitol Hill and the TSA retreated, withdrawing the scheduling cuts before they went into effect. MacLean was later investigated and fired for the unauthorized disclosure of "sensitive security information."

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Photos:Notable leakers and whistle-blowers

Joe Darby is the whistle-blower behind the Abu Ghraib prison abuse scandal in Iraq. He says he asked Army Reserve Spc. Charles Graner Jr. for photos from their travels so he could share them with family. Instead, he was given photos of prisoner abuse. Darby eventually alerted the U.S. military command, triggering an investigation and global outrage when the scandal came to light in 2004. Graner was sentenced to 10 years in prison for his part in the abuse. He was released in 2011 after serving 6½ years of his sentence. The military and members of Darby's own family ostracized him, calling him a traitor. Eventually he and his wife had to enter protective custody.

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Photos:Notable leakers and whistle-blowers

The New York Times reported in 2005 that in the months after the September 11, 2001, attacks, President George W. Bush authorized the U.S. National Security Agency to eavesdrop without a court warrant on people in the United States, including American citizens, suspected of communicating with al Qaeda members overseas. The Bush administration staunchly defended the controversial surveillance program. Russ Tice, an NSA insider, came forward as one of the anonymous sources used by the Times. He said he was concerned about alleged abuses and a lack of oversight. Here, President Bush participates in a conversation about the Patriot Act in Buffalo, New York, in April 2004.

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Photos:Notable leakers and whistle-blowers

Army Pfc. Bradley Manning was convicted July 30 of stealing and disseminating 750,000 pages of classified documents and videos to WikiLeaks, and the counts against him included violations of the Espionage Act. He was found guilty of 20 of the 22 charges but acquitted of the most serious charge -- aiding the enemy. Manning is set to speak in his defense when he takes the stand during the sentencing phase of his court-martial on Wednesday, August 14. He could face up to 90 years in prison if the judge imposes the maximum sentence.

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Story highlights

Rahul Sagar: Edward Snowden took on a heavy burden when he leaked U.S. secrets

He says Snowden could have gone to higher-ups or resigned over policies he opposed

Sagar: Snowden usurped the role properly played by three branches of government

Framers of Constitution such as Madison, Jefferson opposed leaking of secrets, he says

Should unauthorized disclosures of classified information be praised or condemned?

The events of recent weeks -- and the disclosures of Edward Snowden in particular -- have propelled this question to the forefront of public debate. Unfortunately, the responses have been polarized, with some hailing leakers as patriots, and others condemning them as traitors. Some have cited the Founding Fathers to make the case that Snowden was justified in revealing secrets. As is often the case, the truth is more complicated.

The first thing to bear in mind is that employees such as Snowden volunteer to be entrusted with classified information. When they disclose secrets, they are violating the trust that they have asked to be placed in themselves. And they are public employees (even if they happen to be contractors rather than permanent employees).

This means that when they disclose secrets, they are disobeying not only their supervisors, but also the public, whose representatives have enacted laws and regulations relating to the handling of classified information.

Rahul Sagar

Finally, it is not personal secrets that these employees are revealing but state secrets. As such, their actions endanger their fellow citizens when they undermine security operations. In sum, when a government employee makes an unauthorized disclosure he is violating trust, disobeying the law and potentially endangering others. These are points worth absorbing before cheering on leakers and whistle-blowers as "patriots."

This does not mean that an employee can never be justified in making an unauthorized disclosure. An employee could uncover activity so heinous that he feels confident that citizens and overseers would want to know about it so that they could punish the wrongdoers. This could be activity that is obviously criminal or clearly immoral.

An example would be the inhumane practices employed at Abu Ghraib prison, whose disclosure led to the prosecution of wrongdoers rather than the complainant. The recent disclosures do not meet this standard though -- Snowden does not claim to have exposed criminal activity. Well, has he uncovered activity that is clearly seen as immoral by his fellow citizens? This is questionable since polls suggest that at least half the country favors secret electronic surveillance and disapproves of his actions.

Is it enough that Snowden thinks that the National Security Agency's program is morally wrong?

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This argument is obviously problematic. For if Snowden is allowed to break the law whenever he likes, then why shouldn't others? Should we allow a fiscal conservative in the military to reveal a nuclear weapons programs he deems too expensive? Should a Secret Service officer who supports Greenpeace be allowed to disclose the use of a decoy Air Force One because the increased carbon emissions hurt his conscience? What these hypotheticals make clear is that when officials break the law they must be able to give reasons why we the public would want the secret exposed, not why they would want the secret exposed.

Perhaps it will be argued that Snowden thought the program violated the Fourth Amendment. It is worth asking: What happens when an employee becomes aware of a secret policy or operation whose lawfulness might be unclear to him, perhaps because the law is vague or because he worries that overseers are unaware of the activity in question?

Under these circumstances, the employee would be justified in bringing his concern to the attention of higher-ups.

Should he fear retaliation, he might even be justified in approaching law enforcement or even lawmakers. But once he knows that lawmakers and federal judges have also consented to the secret activity in question (as in the PRISM case), then the employee's options are considerably narrower.

If the policy or operation violates his conscience, then he ought to resign. But if he now decides to disclose the secret policy or operation, then he must accept the legal consequences. Why? Because by subverting the decisions of the president, Congress, and the courts, the employee has undermined the authority that the people have vested in these representative institutions.

Therefore to refuse now to submit to the law, to flee overseas, as Snowden has done, is to show contempt for democracy and the rule of law. If an employee believes that he has broken the law for reasons that his fellow citizens will understand, then he ought to be willing to take his chances before a jury (as in the Bradley Manning case).

The moral limits outlined above will be rejected by those who praise unauthorized disclosures. They will insist that unauthorized disclosures advance democracy and American values because transparency is democratic and secrecy is un-American. But this argument cannot be taken seriously.

After all, there are things that the public itself may not want to know, which is why our elected representatives have enacted laws and regulations prohibiting the unauthorized disclosure of classified information. Or are our public officials only allowed to keep secrets when unelected and unaccountable government contractors agree that they may? If that is what we believe, then why have a president? Or hold elections? Indeed, why have a Constitution? Just let the contractors run the show.

It is also worth recalling that the Constitution was not written solely to promote transparency. There are other important values that must also be taken into account, such as the need for what the Framers called "energy" in government, i.e., the capacity to act speedily and secretly in the national interest.

This point is often forgotten by those advocating on behalf of employees who make unauthorized disclosures. "Has Thomas Jefferson's notion that the bedrock of democracy rests on an informed citizenry become as 'quaint' as the Geneva Conventions?" Coleen Rowley recently asked on CNN.

Rowley might be surprised to learn that in May 1784, Congress overwhelmingly approved a resolution declaring all diplomatic correspondence be "considered, at all times, as under an injunction of secrecy, except as to such parts of them as Congress shall, by special permission, allow to be published or communicated." The mover of the resolution was ... you guessed it, Thomas Jefferson. And what about Meriwether Lewis and William Clark's expedition, which was, as Stephen Knott notes in "Secret and Sanctioned," only one of the many covert operations undertaken by Jefferson and his successors?

Proponents of transparency also love to cite James Madison, the Father of the Constitution, who once said that "a popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy." What they don't realize is that these words come from a letter that Madison wrote to Lt. Gov. William Barry commending Kentucky's appropriations for public education in mathematics.

To see what Madison really thought about secrecy it is worth recalling the case of David Howell, Rhode Island's delegate to the Continental Congress, who leaked to the Providence Gazette news of a friendly overture from Sweden. Howell leaked the news, which had been recorded in the Secret Journal on Benjamin Franklin's request, because he believed it vindicated his stance that the United States would be able to mend its war-ravaged finances by raising new loans in Europe, and that Congress therefore did not have to impose a 5% import duty that Rhode Islanders opposed.

Claiming to have informed his constituents of "such things as they have a right to know," Howell subsequently defended his action before the Continental Congress as an exercise of "the freedom of speech." Sound familiar?

Guess how his colleagues -- our revered Founders -- reacted. Howell's response, Madison observes in his "Notes of Debates," provoked "universal indignation," because his colleagues viewed his actions as having betrayed the Swedes and presented the public with a distorted picture of the United States' financial dealings that could not be corrected without revealing "many delicate transactions." Not surprisingly, then, Howell's defense of his action was formally condemned -- on Alexander Hamilton's motion -- as "highly derogatory to the honor and dignity of the United States in Congress."

To be clear, the fact that secrecy has long been seen as being in the public interest does not give officials carte blanche to do as they like. Secrecy needs to be balanced against important civil liberties.

The central question is: Who should do the balancing? The reason the Constitution entrusts the business of balancing values to the three branches is because the officials in charge are chosen by the people and are in a position to check each other, especially with respect to secret policies or operations that it would be self-defeating to make public.

So when an individual decides to short-circuit or circumvent this careful arrangement, he must only do so when there is reason to believe that representatives from all three branches have allowed grave wrongdoing to go unchecked. Otherwise, an unauthorized disclosure is nothing more than an effort to impose one's own narrow political view on one's fellow citizens.

In such a case, it is the leaker, not state secrecy, that poses an "existential threat" to American democracy.